LAW OFFICES OF GEORDAN GOEBEL ELECTRONICALLY FILED BY

GEORDAN GOEBEL [State Bar# 149513] Superior Court of California,

2 ASHLEY STANDER [State Bar# 307562]
155 Granada Street, Suite M-2 County of Monterey
3 Camarillo, CA 93010-7725 On 3/7/201711:17:18 AM
(805) 482-8879 Fax By: Lisa Dalia, Deputy
4 (805) 482-7966 Phone

5 Attorney for Plaintiffs,

STATE FARM GENERAL INSURANCE CO
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8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF MONTEREY

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11 STATE FARM GENERAL INSURANCE ) Case No.: 16CV002381

COMPANY, )
12 ) OPPOSITION TO DEMURRER
Plaintiff, ) TO THIRD AMENDED
13 ) COMPLAINT
vs. )
14 ) DATE: March 17,2017
CITY OF CARMEL-BY-THE-SEA; and DOES 1 ) TIME: 9:00 a.m.
15 through 10, inclusive, ) DEPT: 15
)
16 Defendants. )
)
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18 Plaintiff State Farm General Insurance Company opposes defendant City of Carmel-by-the-

19 Sea's ("the City") demurrer to Plaintiffs Third Amended Complaint.

20 1. ANY VALIDLY PLED CLAIM DEFEATS A DEMURRER.

21 The City's demurrer obfucates the legal issue in this case by attempting to frame the issue as

22 to whether or not the tree which fell was on public or private property, along with a blanket assertion

23 that the City is completely immune from liability for its actions. The single liability issue in this case

24 is whether the City is liable for the damage caused by the falling tree, when the City exercised

25 dominion and control over the subject tree, irrespective of it being on public or private land.

26 The parties met and conferred regarding the City's demurrer to the original complaint. The

27 results of that meet and confer was the first amended complaint ("F AC"). The City then filed a

28 demurrer to the FAC. Attempting to curtail any disputes regarding factual discrepancies, State Farm

OPPOSITION TO DEMURRER
 1 then filed a Second Amended Complaint ("SAC"). Shortly after filing the SAC, State Farm received

2 correspondence from opposing counsel, which mentioned additional factual discrepancies (none of

3 which affected the legal issue involved in this case), so State Farm filed a Third Amended Complaint

4 (TAC) to address the City's issues. Notwithstanding the City's arguments to the contrary, the TAC

5 states facts sufficient to overcome the demurrer.

6 For the purpose of testing the sufficiency of any cause of action, the demurrer admits the truth

7 of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions

8 or conclusions of fact or law). Aubry v. Tri-County Hasp. Dist. (1992) 2 C4th 962, 966-967;

9 Serrano v. Priest (1971) 5 C3d 584, 591; Adelman v. Associated Int'l Ins. Co. (2001) 90 CA4th 352,

10 359. As is set forth in the TAC, the gravamen of Plaintiffs' TAC is that the City, by its own

11 municipal codes, assumed a mandatory duty with regards to management and control of trees within

12 the City proper. For the purposes of the demurrer, all these facts are deemed true.

13 It is not necessary that the cause of action be the one intended by Plaintiff. The test is

14 whether the complaint states any valid claim entitling Plaintiff to relief. Thus, Plaintiff may be

15 mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the

16 essential facts of some valid cause of action are alleged, the complaint is good against a general

17 demurrer. Que/imane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 C4th 26; Adelman v.

18 Associated Int'l Ins. Co. (2001) 90 CA4th 352,359.

19 A general demurrer does not lie to only part of a cause of action. If there are sufficient

20 allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer.

21 Kong v. County of Hawaiian Gardens Redevelop. Agency (2003) 108 CA4th 1028, 1046; PH II. Inc.

22 v. Sup.Ct. (Ibershoj) (1995) 33 CA4th 1680, 1682,40 CR2d 169, 171.

23 2. PLAINTIFFS' THIRD AMENDED COMPLAINT SETS FORTH SUFFICIENT FACTS

24 TO STATE ALL THREE CAUSES OF ACTION.

25 Despite the City's lengthy commentary in its demurrer, the legal issue involved here is quite

26 simple. The City exercised dominion and control over the trees within its jurisdiction. The City

27 required permits to remove trees. The City's code provides that, following the submittal of a permit

28 application, the City Forester "shall review all trees on the site and in the adjacent right-of-way"

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OPPOSITION TO DEMURRER
 (City Code 17.48.060). The tree at issue was one that should have been seen by the City's Forester

2 in his inspection of the property, as it was situated a few feet away from the trees outlined in the
3 permit.
4 A. The City's Violation of its Own Code Section Proximately Caused the Damages as Alleged

5 Herein.

6 The City asserts that cities are immune by statute from decisions relating to issuance or
7 failure to issue any permit. That is not the issue here; the City did issue a permit. Therefore, the

8 City's discussion about the discretionary nature of permit issuance is irrelevant. The issue here is the

9 City's violation of its own code section, wherein it states that the "City Forester shall review all trees

I0 on the site and in the adjacent right-of-way" (City Code 17 .48.060, emphasis added). The word

II "shall" denotes a mandatory action, not discretionary. People v. Municipal Court, I45 Cal.App.2d

I2 767, 775.

13 "The test is this: 'If to construe it as directory would render it ineffective and meaningless it

14 should not receive that construction.' (Citations.) Thus, a statute was held to be mandatory where

15 'to construe this provision of the section as directory merely would be to defeat the very purpose of

16 its enactment.' (Citation) ' ... [I]t appears that if public policy is in favor of the imperative meaning,

I7 the words referred to will be held mandatory.' Citation) 'In construing a statute matters of substance

18 are to be construed as mandatory.' (Citation)" People v. Municipal Court, supra.

19 The City asserts that its own code section regarding the regulation of its trees is not intended

20 to promote public safety, but rather, is intended for the preservation of trees. Does the City also
21 assert that the preservation of trees is superior to the basic principle of public safety?

22 B. The City's Exercise of Dominion and Control over Trees within its Limits Prevented

23 Property Owners from Rectifying Dangerous Condition of Property.

24 The City's policy of requiring permits in order to remove trees, removes any discretion from
25 the private tree owners. Hence, the City exercised exclusive dominion and control over the trees
26 within City limits. And, as property owners were not able to modify or remove trees on their own

27 property, without City approval, the removal of dead or decayed trees were under the City's

28 prerogative. As noted in the T AC, Tracy Hirt notified the City of four trees on her property, in need

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OPPOSITION TO DEMURRER
 of removal. The City, through its Forester, came to the property, and thereafter removed trees,

2 however, failed to notice an equally decaying tree, located a few feet nearby.

3 C. Inverse Condemnation
4 There is no question that municipalities may be liable under inverse condemnation for

5 damage from trees. "[N]umerous [ ] California cases have stated or assumed from time immemorial

6 that when physical injury is the incidental consequence of deliberate government action in

7 furtherance of public purposes, the damaged or destroyed property has been appropriated for 'public

8 use,' and the public has effectively exercised its entitlement to 'use and enjoyment' of the property

9 with compensation. " (Citations) Accordingly, a public improvement for the purposes of an inverse

10 condemnation claim involves (1) a deliberate action by the state (2) taken in furtherance of public

11 purposes. City of Pasadena v. Superior Court, (2014) 228 Cal. App. 4th 1228, 1234.

12 The City's dominion and control of the mandatory tree permit process is a deliberate action

13 by the City for public purposes. The City is liable under the facts of this loss.

14 3. CONCLUSION.
15 The T AC sets forth sufficient facts to establish causes of action against the City. The

16 demurrer should be overrruled.

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18 DATED: March 7-, 2017 LAW OFFICES OF GEORDAN GOEBEL

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By: I~
ASHLEYTANDER,
Attorneys for Plaintiff,
21 STATE FARM GENERAL INSURANCE CO.

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OPPOSITION TO DEMURRER